JUDGMENT : Rao, J. - Miscellaneous Second Appeal is by a surety and Is directed against the order of the learned District Judge, Sambalpur, dismissing his appeal against the order of the learned Munsif, Sambalpur. 2. One Nirmal Prasad Halwai was executing a decree in Execution Case No. 78 of 1952 arising out of Money suit No. 20 of 1950 against Nanakram Agarwala in the Court of the Subordinate Judge, Sambalpur. Nanakram Agarwala was a surety for the Defendant Banarashilal Agarwala in Money Suit No. 20 of 1950. After the suit was filed, a truck owned by the Defendant was attached before judgment. In order to release it, the Appellant Nanakram stood surety for the Defendant, executed a security bond agreeing to pay the decretal dues in case of non-payment by the Defendant and the attachment was in consequence withdrawn. The suit was decreed on 8-3-51 and execution was taken out by the Plaintiff-decree-holder against the Defendant judgment-debtor and on 9-2-52 the Court passed an order in accordance with the compromise that the amount for which the decree was being executed shall be made payable in monthly instalments of Rs. 60/- and in case of default of any single instalment, the entire sum was to be recoverable, the first instalment being payable on 8-8-52. The Defendant-judgment-debtor defaulted payment from the very beginning. Consequently, on 4-4-52, the decree-holder filed a petition to proceed against the surety, on the ground that the judgment-debtor had no property. The decree-holder was allowed to proceed in the execution against the surety and the surety was asked u/s 145, CPC to show cause why execution should not proceed against him. The surety filed an objection in the Court of the Subordinate Judge, Sambalpur on 1-7.52 that the execution was not maintainable against him. On 9-8-52, the District Judge ordered u/s 24, Code of Civil Procedure, that this execution proceeding should be transferred to the District Munsif. But the Subordinate Judge apparently, perhaps under the impression that the order of the District Judge Was not communicated to him, rejected the application filed by the surety objecting to the execution of the decree against him on 16-8-52. The Munsif received the execution record on 2-9-52 in accordance with the transfer order of the District Judge dated 9-8-52. But the Subordinate Judge apparently, perhaps under the impression that the order of the District Judge Was not communicated to him, rejected the application filed by the surety objecting to the execution of the decree against him on 16-8-52. The Munsif received the execution record on 2-9-52 in accordance with the transfer order of the District Judge dated 9-8-52. The surety again filed an objection to the execution u/s 47 of the Code of Civil Procedure, on the ground that he was discharged as surety by the conduct of the Plaintiff-decree-holder and the Defendant-judgment-debtor in compromising the matter behind his back. 3. The learned Munsif held that the compromise between the Plaintiff-decree-holder and the Defendant-judgment-debtor was a valid contract u/s 135 of the Indian Contract Act and that, had this contract been assented to by the surety, it would have been binding upon him. He also held that the surety had no knowledge of the compromise and did not consent to it. But he rejected the objections filed by the surety on the ground that the application before him was barred by principles of res judicata. On appeal, the learned District Judge held that to the petition for compromise for granting instalments the surety was not a party and no notice was served upon him by the Court; and that the contract between the decree-holder and the principal debtor for payment of the money by instalments is not a valid contract as there was no consideration for the agreement between the principal debtor and the decree-holder. In support of his contention, he relied upon a decision in Damodar Das v. Muhammad Husain ILR 22 All. 351. He also held that the contention of the surety before the Munsif was barred by constructive res judicata. 4. Mr. L.K. Dasgupta, the learned Counsel for the Appellant contends that the learned District Judge erred in holding that the contract between the Plaintiff-decree-holder and the Defendant-judgment-debtor to pay the money due under the decree by instalments is not a contract as it is an agreement unsupported by consideration. In the second place, the learned Counsel contended that both the Courts below erred in holding that the present application by the Appellant-surety was barred by constructive res judicata. In the second place, the learned Counsel contended that both the Courts below erred in holding that the present application by the Appellant-surety was barred by constructive res judicata. He also, in the third place, contended that the order of the Subordinate Judge dated 16-8-52 rejecting the objection filed by the Appellant was an order passed without jurisdiction. 5. In support of his first contention that the compromise between the Plaintiff-decree-holder and the principal debtor for payment of the money by instalments was a valid contract and discharged the surety, the learned Counsel or the Appellant relied upon Section 185 of the Contract Act and the following decisions. 6. Section 185 of the Indian Contract Act is clear on this point. The section runs: A contract between the creditor and the principal debtor, by which the creditor makes a composition with, or promises to give time to, or not to me, the principal debtor discharges the surety, unless the surety assents to such contract. The present case, in my opinion, is directly covered by Section 135 of the Indian Contract Act. 7, In the case of Amzadana Jadava Goundar v. Konammal and Anr. AIR 1933 Mad. 509, a Division Bench of the Madras High Court, consisting of Venkatasubba Rao and Reilly JJ. held that the surety was discharged. The facts relevant in this case are A surety bond was executed for allowing execution of a decree pending appeal. The appeal was compromised by which time was given to the principal debtor to pay the amount due by him. The surety was not a party to the compromise. In the course of the judgment, Venkatasubba Rao J., observed: The principle that a contract by a creditor to give time to the principal debtor discharges the surety is (sic) recognised. The reason of the rule is this: The surety is entitled at any time to require the creditor to call upon the principal debtor to payoff the debt or himself payoff the debt and when he has paid it off he is at once entitled to sue the principal debtor j and if the creditor has bound himself to give time to the principal debtor, the surety cannot do either the one or the other of these things until the time so given has elapsed. In the case of Thummalakunta Krishtappa Vs. In the case of Thummalakunta Krishtappa Vs. Satrasala Adinarayanappa and Another it was held: The general rule is that an agreement by the decree-holder to give time to the judgment-debtor discharges the surety of the judgment-debtor. In the case of Appul Gafur Vs. Mannalal Agarwala and Others A was arrested before judgment and B became a surety for him. The surety bond provided that if a decree was passed against A and the decretal amount was not realised from him, B would be liable for the amount. Eventually a compromise decree was passed by which A was given certain period for payment of the amount. It was held that: As the decree that was passed was not capable of immediate execution the surety was no longer liable for the decretal amount. In the case of Narsingh Mahton and Others Vs. Nirpat Singh and Others he facts are as follows:-"term in a contract of surety ship was as follows-"of the suit is decided against the Defendants and a decree for mesne profits is passed in favour of the Plaintiffs, the Plaintiffs would realise the amount of decree of mesne profits from the property mentioned in this deed. "The suit with regard to claim of possession was decided against the Defendants and the Plaintiffs and the Defendants compromised their dispute as to the mesne profits and agreed upon a definite sum exceeding the amount for which surety was given and a certain time was given to Defendants within which to make the payment." It was held by a Division Bench of the Patna High Court consisting of Courtney Terrell, C.J. and Fazl Ali J. on the above facts that: Both by the making of the compromise and the granting of time the surety was discharged. 8. Mr. Sinha, the learned Counsel for the Respondent contended that the case comes u/s 137 of the Contract Act. Section 137 is as follows: Mere forbearance on the part of the creditor to sue the principal debtor or to enforce any other remedy against him does not, in the absence of any provision in the guarantee to the contrary, discharge the surety. Mr. Sinha contends that in this case, the granting of Instalments is simply a mere forbearance on the part of the creditor to realise the money from the principal debtor and consequently it does not discharge the surety. Mr. Sinha contends that in this case, the granting of Instalments is simply a mere forbearance on the part of the creditor to realise the money from the principal debtor and consequently it does not discharge the surety. u/s (d) of the Contract Act, when, at the desire of the promisor, the premise or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise. Forbearance to sue is certainly a consideration and the compromise entered into between the Plaintiff-decree-holder and the Defendant-judgment-debtor under which the money was payable by instalments is an agreement supported by consideration and consequently is a contract. The case is directly covered by Section 135 of the Contract Act. In Section 137, mere forbearance on the part of the creditor to sue the principal debtor does not discharge the surety only if that forbearance is not the result of a contract between the parties but I only an unilateral act on the part of the creditor not taking any proceeding against the principal debtor. It does not contemplate any agreement between the creditor and the principal debtor. This is supported by the illustration to the section. It self which is as follows: - B owes to C a debt guaranteed by A. The debt becomes payable. C does not sue B for a year after the debt has become payable. A Is not discharged from his surety ship. In support of his contention Mr. Sinha relied upon the case of Damodar Das v. Muhammad Husain ILR All. 351. This was the case relied upon also by the learned District Judge. The placitum shows that It was decided In this case that a mere gratuitous agreement by a creditor to give time to the principal debtor will not discharge the surety and that in order to have such effect an agreement to give time to the principal debtor must amount to a contract; that is, there must be consideration therefor. The facts of this case are Muhammad Husain was a surety for the Defendant Wan Ahmad. Wall Ahmed wrote a letter to the Plaintiff, the creditor, asking for time to pay the instalments which were payable by him. The facts of this case are Muhammad Husain was a surety for the Defendant Wan Ahmad. Wall Ahmed wrote a letter to the Plaintiff, the creditor, asking for time to pay the instalments which were payable by him. In reply to that letter the creditor wrote to say thee is no legal impediment, then. I agree; if there is, then I do not agree". It was contended in the lower appellate Court that that was a conditional acceptance of the proposal of the principal debtor and as such did not amount to an agreement. But the lower appellate Court rejected that contention and held that by reason of the creditor accepting the proposal to grant time to the principal debtor, the surety was discharged. In my opinion, the Learned Judges of the Allahabad High Court proceeded on the assumption that the letter written by the creditor was not a conditional acceptance of the proposal of the principal debtor. In my opinion, therefore, this decision is not to any use to Mr. Sinha. He also relied upon a decision in the case of Mahomedalli Ibrahimji Vs. Lakshmibai Anant Palande. Mr. Sinha relies on an observation at page 124 to this effect: It is true that mere forbearance to recover the debt might not release the surety but giving the debtor the right to refuse to pay except parts of the debt at stated intervals alters the position of the surety as regards the debtor. His rights against the debtor are prejudiced by this compromise, and, I think, it can fairly be said that such a compromise was not one which was contemplated by him when he entered into the suretyship. This decision, in my opinion, goes against Mr. Sinha's contention. In the case of Mt. Radha Kunwar Vs. Ram Narain and Others It was held: The idea underlying Section 135 is that where the creditor does something behind the back of the surety and does It to his prejudice by advancing facilities to principal debtor, which are likely to harm the surety, the surety is no more to be bound by his undertaking. Radha Kunwar Vs. Ram Narain and Others It was held: The idea underlying Section 135 is that where the creditor does something behind the back of the surety and does It to his prejudice by advancing facilities to principal debtor, which are likely to harm the surety, the surety is no more to be bound by his undertaking. Where the creditor (transferee of a decretal debt, agrees not to continue execution proceedings against the principal debtor (J.D.) for the time being, to allow him (J.D.) opportunity to raise money to discharge the debt (the decree), it is only an act of forbearance within the meaning of Section 137 and not an instance of giving time under a (sic) within the meaning of Section 135, and does not discharge the surety. In the course of the judgment, Mushtaq Ahmad, J. observed: The idea underlying Section 135, Contract Act, is that, where the trustee does something behind the back of the surety, and does it to his prejudice, by advancing facilities to the J.D., which are likely to harm the surety, the surety is no more to be bound by his undertaking. Nothing of the kind took place here. As we have pointed out each time that the Trustee allowed an opportunity to the J.D., It was to enable him to raise money by a private sale of a portion of his property and to utilise that money in a particular way, namely, the discharging of the decree itself. This, in our opinion, was only an act of forbearance within the meaning of Section 137 of the Act and not an instance of giving time under a (sic) within the meaning of Section 135 thereof. The learned Judges only held that the action complained of in that case does not amount to an act of forbearance contemplated u/s 135 of the Act but is only a mere forbearance u/s 137. But in the instant case, it was a case of granting time for payment of the dues in instalments and such a contract would necessarily prejudice the surety inasmuch as it postpones the time for realisation of the debt considerably and is contrary to the principle underlying the liability of a surety. In the case of Haji Ahmed Karim v. Maruti Ravji Bhongle AIR 1931 Bom. In the case of Haji Ahmed Karim v. Maruti Ravji Bhongle AIR 1931 Bom. 55, where A had become a surety for decretal amount against the judgment-debtor B to the decree-holder C, and Band C had compromised the suit and C sought to enforce the decree against A, it was held that: The surety, under the said circumstances, cannot resist enforcement of the surety bond on a compromise on the face of it bona fide. This decision, in my opinion, does not in any way support Mr. Sinha's contention. In the case of Ajitkumar Basu Thakur Vs. Chairman of the Commissioners of Dacca Municipality it was observed: A surety guaranteeing payment by the Defendant of the amount that might be decreed against him, is not discharged merely by reason of the fact that the decree provided for postponed payment or for payment by instalments. The facts of the Calcutta case are quite different. In the course of the judgment, Rankin, C.J. says at page 861: The doctrine that where a person is a surety for the obligation of another person under a contract any variation in the contract will discharge the surety is plain enough. In the same way if the creditor gives time to the principal debtor that is a matter which may affect the surety and the surety's obligation may be discharged in such a case as that. We are dealing here with a person who has given security for whatever may be recoverable under a decree to be passed in the future by the Court. In the light of this definite observation and in view of the surety band in the instant case before me this decision does not in any way help the Respondent. 9. On a discussion of the above cases relied upon by both sides, I am of opinion that the compromise between the Plaintiff-decree-holder and the Defendant-judgment-debtor is a contract coming within Section 135 of the Indian Contract Act. The surety u/s 137 of the Contract Act will not be discharged if all that he rests upon is the passive conduct of the creditor in not suing. Forbearance u/s 137 means forbearance not resting upon or In consequence of such a promise to give time to or not to sue the principal debtor (sic) Is the subject of Section 135. Forbearance u/s 137 means forbearance not resting upon or In consequence of such a promise to give time to or not to sue the principal debtor (sic) Is the subject of Section 135. The learned District Judge is therefore not correct in his finding that in this case the agreement to realise money by instalments is not supported by consideration. u/s 135 of the Contract Act, the Appellant is, by virtue of the said agreement, discharged from the surety ship. 10. But this finding by me does not dispose of the appeal. There is still the question whether the Appellant is barred by principles of constructive res judicata in agitating this question before the learned Munsif, his prior objection before the learned Subordinate Judge having been rejected. The learned District Judge held that the Subordinate Judge having rejected the petition and the surety having never preferred any appeal against that order, constructive res judicata must arise to estop him. No doubt, the decisions have clearly laid down that the principles of res judicata do apply in an execution proceeding also and that if the judgment-debtor raises an objection in the first instance which is rejected, he cannot be allowed to re-agitate the same. But in this case the prior order by the learned Subordinate Judge rejecting his application was passed on 16-8-1952 after the District Judge ordered the proceeding to be transferred to the District Munsif on 9-8.1952. Both the Courts are situated at Sambalpur and in the usual course, the order of the District Judge must have been communicated on that day or at the most on the next day. Order No. 27 in Execution Case No. 78 of 1952 dated 2.9-1952 made by the Subordinate Judge Is as follows:-"Transferred to the file of the Munsif, Sambalpur as per D.J.'s Memo No. 1620(2) dated 9-8-1952 for disposal". Order No. 28 which is also of the same date is by the Munsif and is to this effect Received on transfer today from the Subordinate Judge, Sambalpur. Put up on 19-9-1952 for orders awaiting receipt of notice under Order 21, Rule 22. Inform parties". Order No. 28 which is also of the same date is by the Munsif and is to this effect Received on transfer today from the Subordinate Judge, Sambalpur. Put up on 19-9-1952 for orders awaiting receipt of notice under Order 21, Rule 22. Inform parties". If a transmission was made by the Subordinate Judge on 2-9-1952 and the record was received by the Munsif on the same day, I am of opinion, the order passed by the District Judge on 9-8-1952 must have been received by the Subordinate Judge on the same day or the next day. If that was so, the order passed by the Subordinate Judge on 168-1952 is clearly an order without jurisdiction. The order was passed after the Subordinate Judge received the order of the District Judge transferring the execution case to the file of the District Munsif. 11. Subsequent to the hearing and before the delivery of judgment, Mr. L.K. Dasgupta also filed an affidavit of the Appellant stating that the order of transfer of Execution Case No. 74 of 1951 from the Court of the Subordinate Judge to the Court of the Munsif, Sambalpur was communicated to the Subordinate Judge, Sambalpur by Memo No. 1620(2) dated the 9th August, 1952 and the said order was received in the office of the Subordinate Judge on 11-8-1952 and it was also put up before the learned Subordinate Judge on the said date; and that the certified copy of the memo of the learned District Judge transferring the execution case is not available to the Appellant as it is in the nature of correspondence. 12. The learned District Judge has not correctly approached the question relating to bar of res judicata. He did not consider the question whether the order of the Subordinate Judge rejection the application was made after the receipt of the transfer order made by him. After elaborately discussing whether the learned Munsif had jurisdiction to execute the decree, he came to the conclusion that the Munsif had jurisdiction to execute the decree though it was not the Court which passed the decree on account of the execution application having been transferred to him. After elaborately discussing whether the learned Munsif had jurisdiction to execute the decree, he came to the conclusion that the Munsif had jurisdiction to execute the decree though it was not the Court which passed the decree on account of the execution application having been transferred to him. From the judgment of the learned District Judge, I find that the present question agitated before me that the order dated 16-8-1952 by the Subordinate Judge could not operate as res judicata as it was not a valid order having been made after the execution application was transferred to the Court of the District Munsif was not considered. In that aspect of the matter, he assumed that the Subordinate Judge had no jurisdiction to transfer the application to the Munsif and on that assumption approached the decision of the question relating to constructive res judicata. In my view, this was not the relevant question to be considered in this connection. The question he ought to have considered was whether the order of the Subordinate Judge rejecting the objection on 16-8-1952 is a valid order and i; passed by a competent Court, the order having been passed on 16-8-1952 when the transfer order of the District Judge was passed on 9-8-1952 and received by him before 16-8-1952. The learned District Judge, if he had this aspect In his mind, would have verified when the order of transfer was made by him u/s 24 of the CPC and transmitted to the Subordinate Judge as the correspondence relating to the same would be available with him. 13. The Subordinate Judge's order dated 16 8-52 rejecting the surety's objection would be without jurisdiction if the order of transfer by the District Judge was received by him between 9.8-52 and 16-8-52. 14. There is no definite evidence on the record as to when the order of transfer u/s 24, CPC was received by the Subordinate Judge. The affidavit filed by the Appellant shows that the order was received and even put up before the Subordinate Judge on 11-8-52. If that is so, the order dated 16-8-52 is without jurisdiction and is invalid. Had the appellate Court considered this aspect of the matter, it would have easily got that information. The affidavit filed by the Appellant shows that the order was received and even put up before the Subordinate Judge on 11-8-52. If that is so, the order dated 16-8-52 is without jurisdiction and is invalid. Had the appellate Court considered this aspect of the matter, it would have easily got that information. I think, in the interests of justice, the appeal should be remanded to the tower appellate Court for disposal according to law after allowing the parties to have an opportunity to adduce evidence as to when the transfer order was received by the Subordinate Judge. 15. In this view of the matter, I allow the appeal, set aside the Order of the lower appellate Court and remand the appeal to the District Judge for disposal according to law in the light of the observations made by me. Costs will abide the result. Appeal remanded. Final Result : Allowed